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III. The regulatory framework

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A. The Old Regime

Prior to the enactment of the Safe Schools Act, Section 23 of the Education Act regulated the suspension and expulsion of students.[35] The authority to suspend a student was limited to principals[36] and the authority to expel was limited to school boards.[37] In both cases, the exercise of that authority was discretionary. A suspension could not exceed twenty days.[38] Although an expulsion could be of indefinite duration, the school board had the discretion to readmit a student at any time.[39] The grounds for suspension were limited to persistent truancy, persistent opposition to authority, habitual neglect of duty, the willful destruction of school property, the use of profane or improper language, or conduct injurious to the moral tone of the school or to the physical or mental well-being of others in the school.[40] A student could be expelled from all of the board’s schools if the pupil’s conduct was so “refractory” that the pupil’s presence was “injurious to other pupils or persons.”[41]

B. The New Regime

The new regime, which now forms Part XIII of the Education Act, is more complex and, reflecting the zero tolerance philosophy of its proponents, takes a more hardline approach in dealing with behaviour, discipline and safety problems.[42]

1. Authority to Suspend and Expel

The authority to suspend a student is provided to both principals and teachers. A principal has the power to suspend for up to twenty school days,[43] while a teacher has the power to either suspend for one day or refer the matter to the principal.[44] The authority to expel has also been expanded, with school boards and principals sharing that authority. There are now two kinds of expulsion: (1) a limited expulsion from the school the student was attending until the later of a) a date set by the principal or board (twenty-one days to one year) or b) the date on which the student meets requirements established by the board,[45] and (2) a full expulsion from all (publicly funded) schools in the province until the student has attended and met the requirements of a strict discipline program.[46] Pending an inquiry into an incident, a principal must suspend a student who the principal believes may have committed an infraction for which expulsion is mandatory[47] and may suspend a student who the principal believes may have committed an infraction for which expulsion is discretionary.[48] A principal can impose a limited expulsion or refer the matter to the school board,[49] while the school board can impose limited or full expulsion.[50]

2. Mandatory Suspension and Expulsion

Perhaps the most significant change in the new regime is the provision for mandatory suspension, mandatory expulsion and police involvement. A suspension is mandatory if a student commits any of the following infractions:

  1. Uttering a threat to inflict serious bodily harm on another person.
  2. Possessing alcohol or illegal drugs.
  3. Being under the influence of alcohol.
  4. Swearing at a teacher or at another person in a position of authority.
  5. Committing an act of vandalism that causes extensive damage to school property at the pupil's school or to property located on the premises of the pupil's school.
  6. Engaging in another activity that, under a policy of the board, is one for which a suspension is mandatory.[51]

An expulsion is mandatory for the following infractions:

  1. Possessing a weapon, including possessing a firearm.
  2. Using a weapon to cause or to threaten bodily harm to another person.
  3. Committing physical assault on another person that causes bodily harm requiring treatment by a medical practitioner.
  4. Committing sexual assault.
  5. Trafficking in weapons or in illegal drugs.
  6. Committing robbery.
  7. Giving alcohol to a minor.
  8. Engaging in another activity that, under a policy of the board, is one for which expulsion is mandatory.[52]

3. Police Involvement

The provincial Code of Conduct also mandates police involvement, in accordance with the police/school protocol, for all the above infractions, except for uttering a threat, possession of drugs and acts of vandalism, where police involvement is “as required”, and swearing and being in possession or under the influence of alcohol, where police involvement is not mandatory.[53]

4. Mitigating Factors

However, the Act and Regulations do provide for mitigating factors, whereby the suspension or expulsion of a student is not mandatory if:

  • (c) the pupil does not have the ability to control his or her behaviour;
  • (d) the pupil does not have the ability to understand the foreseeable consequences of his or her behaviour; or
  • (e) the pupil's continuing presence in the school does not create an unacceptable risk to the safety of any person.[54]

Furthermore, in considering the duration of a suspension or the type or duration of an expulsion, the principal or board must consider the student’s history and other factors prescribed by regulation (none at the moment) and may consider other matters that he, she or it considers appropriate.[55] The minimum duration of a mandatory expulsion is twenty-one days.[56]

5. Discretionary Suspension and Expulsion

The discretionary suspension or expulsion of a student is left to school board policies.[57] In other words, school boards have been delegated the authority to list infractions for which a teacher or principal may suspend or a principal or board may expel. Therefore, a school board policy must incorporate the infractions listed in the Act for which suspension and expulsion are mandatory, but it can also (1) add infractions to the mandatory category and (2) create a list of infractions for which suspension or expulsion is discretionary.

6. Notice, Review and Appeal

A written notice of suspension or expulsion must be given promptly to the student, or if the student is a minor, to the student’s parent or guardian.[58] A one-day suspension cannot be appealed.[59] A two- to twenty-day suspension is subject to review by a person specified in the school board policy and can then be appealed to the board whose decision is final.[60] The decision of a principal to impose a limited expulsion can be appealed to the school board and the board’s decision is final.[61] The decision of a school board to impose an expulsion can be appealed to the Child and Family Services Review Board.[62] The specific procedures for appealing a suspension or expulsion are left to school boards to determine by policy.[63]

7. Alternative Programs

The Act states that the Minister may require school boards to establish and maintain specified courses and services for students who are suspended and expelled.[64] To date, despite the Minister’s promise during the House debates on the Safe Schools Act,[65] that has not happened. The Act also states that the Minister may establish one or more programs for expelled students to prepare them to return to school. That has happened. Ontario Regulation 37/01 provides that a student who is subject to full expulsion may attend a school in Ontario if the student successfully completes a strict discipline program or has satisfied the objectives required for the successful completion of such a program.[66]

In practice, this means that there is currently no legal requirement for school boards and schools to provide homework or alternative programs for students subject to suspension or limited expulsion. Students subject to full expulsion, however, have the option of attending and completing a strict discipline program if they want to return to a school in Ontario. When the Safe Schools Act came into effect in September 2001, seven strict discipline programs were up and running in Ontario.[67] The Ministry of Education has given its approval to fifteen providers of strict discipline programs.[68]

[35] Education Act, R.S.O. 1990, c. E.2, as amended by S.O. 1993, c. 11.
[36] Ibid. ss. 23(1).
[37] Ibid. ss. 23(3).
[38] Ibid. ss. 23(1.1).
[39] Ibid. ss. 23(5).
[40] Ibid. ss. 23(1).
[41] Ibid. ss. 23(3).
[42] Education Act, R.S.O. 1990, c. E.2, as amended by S.O. 2000, c. 12. See Appendix I, Tab 14.
[43] Ibid. ss. 306(2) and (4).
[44] Ibid. ss. 306(2),(3) and (6).
[45] Ibid. ss. 309(14) and (18).
[46] Ibid. ss. 309(16); Ontario Regulation 37/01, s. 3. See Regulation 37/01 at Appendix I, Tab 15.
[47] Education Act, ibid. ss. 309(2).
[48] Ibid. ss. 310(2).
[49] Ibid. ss. 309(7) and 310(3).
[50] Ibid. ss. 309(11).
[51] Ibid. ss. 306(1). See the Chart on Mandatory Suspensions at Appendix I, Tab 13.
[52] Ibid. ss. 309(1). See the Chart on Mandatory Expulsions at Appendix I, Tab 13.
[53] Ontario Schools Code of Conduct, proclaimed in force 1 September 2001, 10-11. See Appendix I, Tab 16.
[54] Education Act, supra note 42, ss. 306(5) and 309(3); Ontario Regulation 106/01, s. 1; Ontario Regulation 37/01, s. 2. See Regulations 106/01 and 37/01 at Appendix I, Tab 15.
[55] Education Act, ibid. ss. 306(9) and 309(19).
[56] Ibid. ss. 309(18).
[57] Ibid. ss. 307(1) and 310(1).
[58] Ibid. ss. 306(10), 309(5) and 309(20).
[59] Ibid. ss. 308(4).
[60] Ibid. ss. 308(3) and (6).
[61] Ibid. ss. 311(3).
[62] Ibid. ss. 311(5); O. Reg. 37/01, ss. 4(1).
[63] Education Act, ibid. ss. 308(5) and 311(2).
[64] Ibid. ss. 312(1) and (2).
[65] Supra note 28.
[66] O. Reg. 37/01, ss. 3(1).
[67] Supra note 27.
[68] Ministry of Education, Policy/Program Memorandum No. 130, School Board Programs for Students Who Have Received a Full Expulsion, 19 September 2001, Appendix B. See Policy/Program Memorandum No. 130 at Appendix I, Tab 17 of this report.


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